If nothing else, this action belies the "it was Bush who freed the guys who wound up in Yemen" argument.

As I said in the prior thread, before the Christmas incident, exactly who was downplaying the number of former Gitmo detainees who had returned to battle, and accused the media of allowing those numbers to be used to oppose Obama's executive order to close Gitmo in a year?

Indeed, Bush set up the military review process that, contrary to his critics' protestations, did review each detainee's case and did recommend release according to a threat hierarchy.

Assuming that those releases started with the lowest threat detainees, what does it say about the latest plan to send six more back to Yemen?

Unless you make the argument that the military review panels were grossly incompetent and started recommending for release detainees with the highest threat profile, then one would have to assume that the latest six detainees would have even higher risk profiles.

So, both administrations were willing to take risks to release detainees, but logic would say Obama is willing to take even greater risks in furtherance of a politically self-imposed imperative to close Gitmo, not simply in an effort to properly adjudicate each detainee's case.

My guess is that if the Republicans offered up articles of impeachment the measure would be killed in committee. But so what? At that point the Republicans, preferably all of them but barring that most, could gather on the capitol steps and give the articles a public reading, which the Dems and MSM could not bury. Way past time to label the traitor for what he is.

"The professor seems to have made the mental shift from 'innocent till proven guilty' to 'kill 'em all; let God sort 'em out.'"

There's nothing in this post to evidence such a ridiculous claim.

What the professor has done here is point out how tone deaf the Obama administration is.

They're insistent on letting terrorists go no matter what the cost ... and seem to be insistent on making sure that the new ones have no trouble with their boarding passes at the gate.

She's ridiculing the suggestion that John "Who?" Brennan can "make sure we don't do anything that's going to put Americans at risk."

That's a ludicrous statement on its face. And that they said it reveals their desperation.

It was Napalitano-ish in its epic stupidity.

The system is not working; and the Obama Adminstration isn't doing what it takes to make sure they're not putting Americans at risk. And terrorists are having no trouble getting on planes with valid visas.

@fred, here's what you don't get. It was bad enough when Bush did it. Many of us were concerned.

Now that it has turned out that many (potentially as high as 43) of those released have returned to terrorism, and certainly two of the masterminds behind the Christmas attack, and given that those released under Bush had had their cases carefully reviewed and were regarded as the lowest risks, it has to be raw madness to release additional detainees, and particularly it has to be madness to release them to a country where we are closing our embassy.

Let me simplify it so that even a liberal Democrat can understand. Barack Obama has, in front of him, the example of what happened when Bush released detainees. If he wasn't a total nincompoop he'd pay attention to what happened.

So, FLS, do you have an opinion on whether or not it's a good idea to release detainees to Yemen? Do you think it's a good idea to close our embassy in Yemen (due to what they are calling dangerous conditions there)? Do you find those decisions contradictory? Are you able to state an opinion with out having to compare Obama decisions to Bush decisions? Can you do so with out complaining about Althouse? Curious if that was possible. You are always so defensive.

1. If they weren't terrorists they wouldn't be detainees, because the Bush administration didn't make any mistakes, and

2. If the ones the Bush adminstration released turned out to be terrorists, God knows that the remaining detainees just have to be terrorists, because if the Bush administration did make mistakes, they always erred on the side of caution.

Well, there might not be any reason to retain these detainees. But there is no innocent person at Guantanamo. If these guys want to confess to something and be charged and sentenced, then I have no problem with them serving out their sentences and then going back to their family and country, even if their country is Yemen. The only important thing is that no one leaves Guantanamo innocent!

Bush was pressured to adjudicate the cases of Gitmo detainees; he ordered military reviews, which put the detainees in groups based on threat-level risk; Bush released detainees in order of the lowest risk in the interest of justice and to satisfy his critics; Obama will take even greater risks to release detainees with higher risk status in order to serve his politically self-imposed imperative to close Gitmo.

Much of this criticism at the Obama Administration is, it seems to me, little more than partisan whining that the same critics today complained about when it was the Bush White House receiving it. Look, the national security bureaucracy - as bureaucracies tend to do - fell asleep. To lay this at Obama's feet is absurd (yes, you can criticize his delayed response).

Setting that aside (I'll be ecumenical), it's hard not to conclude that this White House did indeed believe that if they got rid of those "neocon" policies, closed Gitmo, made an outreach to the Islamic world, that nearly all of these dangers would dissipate. Not all and not overnight; I don't think they were that foolish.

Obama is a student of Niebuhr. Well, Niebuhr's* critic of the, what he called, "children of darkness" didn't just apply to our own family. He's learning this fast.

Faster please.

[*Niebuhr: "We must take, and must continue to take, morally hazardous actions to preserve our civilization."]

Believing that: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, my position is that no one should be arbitrarily deprived of his liberty.

SMGalbraith said... Much of this criticism at the Obama Administration is, it seems to me, little more than partisan whining that the same critics today complained about when it was the Bush White House receiving it.

It's my guess that you would hear somewhat less partisan whining from us critics if Obama could get off the blame-Bush-first merrygoround. When will he begin to take responsibility for the things that occur on his watch? Ever? Can he now admit that the Cairo speech didn't work the magic we were told it did? Can he not take responsibility for the (non)actions of a CIA operating under his appointees? If his policies are better than Bush's, why are things worse a full year down the road? If Napolitano's first, and honest, reaction had been a heartfelt acknowledgement of failure instead of a "Heckuva job" photo op we might be gaining respect instead of losing it.

SmGalbraith wrote:Much of this criticism at the Obama Administration is, it seems to me, little more than partisan whining that the same critics today complained about when it was the Bush White House receiving it.

by the same token then the same people now whining about partisan attacks against Obama were the same ones making partisan attacks against Bush when he was in office.

Former lawstudent wrote:Believing that: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, my position is that no one should be arbitrarily deprived of his liberty.

But its different in the middle of a war zone than it is in polite society. What is your position on the Geneva Convention itself which allows signatory countries to hold prisoners for the duration of hostilities without trial?

The funny thing is that imprisoning some guys based on classified intel is like the worst human rights violation evah, but dropping a GPS-guided bomb on someone's house based on classified intel is completely kosher, er, halal.

by the same token then the same people now whining about partisan attacks against Obama were the same ones making partisan attacks against Bush when he was in office.

Well, that's my point.

Or one of them.

The larger criticism - or more serious one - has merit. I.e., this Administration and it's liberal/left supporters believed that goodwill from us would mostly remove the threats to the nation. That it was "neocon" policies driving most of the conflict.

Get rid of the "neocons", hit the "re-set" button and a golden age of peace would ensue.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, my position is that no one should be arbitrarily deprived of his liberty.

That's why we set up military tribunals.

Never before in the history of mankind has a nation - this or any other - given more rights to enemy alien combatants captured overseas during war then we've given these people.

Good point. The left overlooked the fact that the conflict was going strong well before Bush and the "neocons" arrived on the scene. At first this assertion was more likely due to political expedience than sheer stupidity. However, I'm starting to wonder about that now.

FLS - "former law student said... What is your position on releasing the detainees?

Believing that: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, my position is that no one should be arbitrarily deprived of his liberty.

1. You quote a Declaration with no legal force.

2. We signed the Geneva Conventions and until or unless we withdraw - it allows us to hold both legit POWs and unlawful enemy combatants w/o trial.

3. The UN Charter we signed outlaws nations from declaring war unless they are attacked by another Nation. The last nation to declare war on a party which had not directly attacked them was the Soviet Union on Japan, in May of 1945. The US Constitution was not fixed to correct it's obsolete language. Instead constitutional scholars, Congress, and SCOTUS said "other language" was acceptable in putting us in war and triggering Geneva and wartime measures in the USA. Such as "Congressional authorization for US use of military force" signed by the President. A practice we have used since the late 1940s (before Korea, for other commie insurgencies)

4. What is legally binding is the Preamble - the goals of the Constitution - which all subsequent verbiage and Amendments are there to help further...

[We The People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty for ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.

a. Note it said "we the people" not "we the lawyers ruling over the people in a new Sanhedrin or Sharia Council."

b. Note it was for benefiting Americans - not Islamoid enemy or any other enemy for that matter.

c. Presently, the Islamoids..who the Founders forgot to mention Precious Enemy Liberties and Rights Thereof ---are engaged in a violent jihad to destroy or counter several of those Preamble Goals. Meaning we should - if we truly care about the Constitution - destroy the Islamoids and remove their Leftist defenders from any position where they can defend and further the Islamoid's jihad.

Watching these in over their head, moslem friendly, Government workers screwing around in DC is like watching Mars Attacks. The antidote may again be a cool country lady whose facebook posts make the Harvard elite's heads explode.

they were dragged off the battlefield after having tried to kill our troops.

A metaphorical battlefield or a real battlefield?

The Geneva Convention divides mankind into soldiers and civilians. The terrorists are not soldiers -- if they were they would be part of an enemy country's force, which they're not -- so they must be civilians. What they are is criminals -- but uniquely in our history, criminals whose guilt is presumed.

I'm late to this, but the scariest quote from the article has got to be:

Brennan called the failed attack on a Northwest Airlines flight from Amsterdam, Netherlands, to Detroit, Michigan a "unique incident" that won't affect the process of closing the Guantanamo facility.

unique how? cause a young Muslim who was reported as a possible Islamic, who traveled to Yemen, was banned from Britan after joining Islamic groups there, buys a one way ticket with cash, with now luggage manages to get on a plane with a bomb?

how many ways was that a failure and how right would we need to be to aviod the next bomb?

I might be wrong about this, but I don't think so. There are actually three categories: soldiers in uniform, civilians and combatants without uniforms. It is this last category that causes the conundrums we are currently facing and which animates much of these conversations. These soldiers who disguise themselves as civilians do not ascend to the rights of civilians. Not according to the Geneva Convention. Under Obama perhaps, and according to those who do not view the west versus jihadists as a war, but not according to the convention.

The applicable legal term is unlawful combatants; by international agreement, they do not receive the protections of the [3rd] Geneva Convention.

The Geneva Conventions do not define "unlawful combatant" or even "lawful" combatant. The Bush administration made it up as it went along. The precedents used were FDR's treatment of the German-American saboteurs.

The third convention refers to prisoners of war belonging to a country's military or a volunteer force fighting on behalf of that country. Thus the fourth Geneva Convention applies to the terrorists because the third does not.

Article 5 of the fourth Geneva Convention describes the treatment of civilians in the territory of the state who are definitely suspected of activities hostile to the security of the state -- they lose the ordinary protections of the fourth Geneva Convention.

Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

The stupidity exhibited by some on this blog is astounding in its degree.

Yemen isn't a terrorist state. It has an contact, probably a lot of them, operating within its borders, MUCH LIKE DOZENS OF OTHER NATIONS including France, Germany, England, Canada etc.

Further, it doesn't matter where we send anyone, if they don't go to jail or prison, then then will wind up where they decide to eventually...what? do you expect that we put someone there after release and they will just stay put as in "go stand in the corner"?

Some on this blog are such kneejerk reactionaries with absolutely no thought process that amounts to anything, so full of "I wanna get Obama", and with no mental abilities other than some sporadic brainwave activity that some of us wonder what constitutes the biggest long term threat; terrorists or letting you breed.

Opus...Knee jerk reactionary here...we are fighting militant islam-not a country. You are correct, they can and are in dozens of countries. Some of these countries offer safe havens, some do not. I would rather the enemy combatants be held at Club Gitmo until the war on "man caused disasters" (Janet Incompetano's words)is over.

"The Geneva Conventions do not define "unlawful combatant" or even "lawful" combatant. The Bush administration made it up as it went along."

Wrong.

The Third Geneva Convention establishes explicit criteria for lawful combatants, whether or not that specific term has been used.

Therefore, there is an implicit category for unlawful combatants, whether or not that term has been specifically defined.

In the past, various terms have been used for such persons: war criminal, unprivileged belligerent, spy, saboteur, and even terrorist. The suggestion that acknowledging that this class of combatants started with the Bush administration is, in a word, bullshit.

And it's bullshit whether or not the Fourth Geneva Convention affords unlawful combatants the same legal protections as civilians.

However, the Supreme Court decision in Hamdan v. Rumsfeld renders a discussion of all but the first three Geneva Conventions irrelevant with respect to conflicts against the United States.

According to the Supreme Court, enemy combatants who do not follow the Geneva Conventions and the laws and customs of war are to be afforded the same rights and protections as American citizens -- rights and protections that go far beyond anything in the Geneva Conventions.

So, as long as you're fighting against the United States, there is now this incredible incentive to be barbaric and to violate international law.

On a practical level, trials for terrorists will change our justice system. The Obama/Holder Justice Department has already said that even if Khalid Sheikh Mohammed gets off, he will still be detained indefinitely. So we know, for a fact, that in his case he will receive a life sentence no matter what the outcome of the trial actually is.

The jurisdictional and evidentiary nightmares inherent in such trials require a perversion of justice not seen in the United States since colonial times. And that's to say nothing of the twisted interpretations of existing civilian laws that will be necessary to convict terrorists in the first place.

And, in time, the precedents set by those twisted interpretations will be applied to actual American citizens, and not just those who are elevated to the status of honorary American as a reward for committing war crimes against the United States.

The good news is that by his appellation, FLS seems to acknowledge that he did not complete law school.

The bad news is that he is always practicing law on this blog.

The worse news is that if he were a lawyer he’d be guilty of malpractice in every one of his superficial interpretations & unsupportable applications of the principles & laws he quotes re the issues at hand here.

He probably always wanted to be a lawyer, but studying was hard & so he decided to pontificate on blogs.

Well, in many instances, blog peer review is harder & in fact here he’s being reviewed by his betters, not to his advantage.

But, alas, FLS is not idiosyncratic in his overvalued idea of what the rights of man mean in this situation; a number of those who do have law degrees think that we are fighting the case against terror rather than the war against terror. The One seems to be mainly in their camp. God help us.

The Obama/Holder Justice Department has already said that even if Khalid Sheikh Mohammed gets off, he will still be detained indefinitely.

Of course you are right to be aghast at this utterance, which shows the absurdity of the Obamacons' mishmash approach.

But let me add that, as I’m sure you know, though the Hon AG, for one, doesn’t: no Federal Judge worth his oath can let a trial go on if the prosecutor says "trial first and then we'll jail him" or "Verdict first & then we'll try him!"

But, Obama has two hats: The Civilian & The Military one. And, no sane Commander in Chief can let a combatant free while we're at war. And if anyone doubts that statement just look at what some of the allegedly rehabilitated terrorists have done after they were let out. And if Bush did the letting out, then Obama should profit by this grossly negligent or willfully blind mistake & stop the letting out, as some have already noted here

No, Article III, Section 3... in adhering to their Enemies, giving them Aid and Comfort.

"Article III" vests the judiciary. Article I applies; impeachment of a president is vested in the Congress; first the House, then the Senate. See Nixon v. United States; Congress's impeachment powers are above and beyond judicial review.

"Article One" in the original context refers to "my" proposed articles of impeachment regarding President Obama.

By no measure - none - has the President committed treason. To argue otherwise is, for me, to make an ugly and baseless charge.

Ugly, but certainly not baseless. In addition, impeachment is always better than encouraging a civilian uprising, or a military coup.

The Geneva Conventions do not define "unlawful combatant" or even "lawful" combatant.

Disagree. By necessity, the designation is ever evolving. However, if you doubt the term as currently applied, file for habeas corpus. Which should be easy given your reading of and reliance on piecemeal Geneva conventions.

In addition, despite President Obama's executive order of December 16 (another impeachable offense), the United States has not [yet] ceded its authority or sovereignty over enemy combatants.

"Of course you are right to be aghast at this utterance, which shows the absurdity of the Obamacons' mishmash approach."

I'm aghast on so many levels you don't even know.

I am aghast that our justice system has been perverted by a civilian trial with a preordained outcome.

I am aghast that our Supreme Court has ruled that enemies of the United States can become honorary Americans by committing crimes against humanity against Americans.

I am aghast that enemy combatants have been and will continue to be released back into the wild to plan and support other attacks against the United States.

I am aghast that America's criminal jurisdiction is now... well... the rest of the world and our soldiers will be expected to act like civilian police as well as warfighters.

I am aghast that all of this virtually guarantees that we will suffer additional terrorist attacks in the future.

And I am aghast that, if we do suffer another terrorist attacks, then the human toll and the curtailing of American freedoms will be vast. Because Americans will be polite and pretend that frisking Granny is better than killing a shit ton of people, mass deportations, and restricting free speech for only so long.

I am aghast that your list is necessary here & that, when the “all people are innocent ‘til proven guilty by our impossible standards” crowd has been thereby shown to have no clothes on, they will dismiss your well-thought points by their all purpose putdown: “wingnut”.

Personal note: I have relatives, one the Hubby who concentrates on what he sees as the jackboot military & the other, the Wife who has never met a child molester/murderer in prison who is guilty, each of her prisoners having been railroaded by the incompetent police, found guilty by a hanging jury, & sentenced by a vindictive judge who ran the trial as if it were foreordained. And, of course, the defendant’s lawyer who was last in his class & always drunk & unprepared…. And I, of all people should realize that poverty, gurgle, gurgle.

And there’s heavy reliance by hubby & wife on the Bible, the Declaration of Independence, the UN Basic Documents as well as Magna Carta, Montesquieu (did he predict Gitmo?)…. I could make a list, but you get the idea. Once to amuse myself in one of these tirades where I was cast in the role of the uncaring, the uncompassionate, I asked if they had read Wilde’s Ballad of Reading Gaol & got a blank stare. They assumed that I was, yet oh once more, being an elitist & on the side of the Establishment.

Another story, if you’re with me still: a few months ago, a Con Law Prof & certified expert TV Talkinghead was pontificating about the constitutional issues involved in the imprisonment, by the local police, of the FL mother who kinda, sorta might have known something about her late daughter’s final journey. I thought that this was another example of over explanation & under explanation at the same time. Not easy, but that’s why this guy was a great talkinghead for the uninformed. I felt that this Prof, with all due respect to our favorite law Prof here, might’ve explained under what part of the FL criminal code the cops felt that they could keep the alleged accused still sitting in jail despite Magna Carta, the Enlightenment & the Bill of Rights. Ya think?

Last story. I hope if FLS’s favorite aunt calls him in the middle of the night & tells him that her favorite child is being held in “The System” somewhere in lower Manhattan “for drugs”, that FLS doesn’t go there as the alleged perp’s representative & argue with some functionary about the rights of the accused under the Declaration of Independence. I suggest that he immediately get a real lawyer, even one without the vision of FLS, who knows the intricacies of the system or the poor woman’s kid may wind up in Rikers with a sore a**hole, being there because of the inadequacies of his related a**hole, FLS.

I don't want to sidebar on this thread, but I have a further problem re The President’s signing that Executive Order designating INTERPOL as being entitled to enjoy certain privileges, exemptions, & immunities: BDS.

In addition to the issue of enemy combatants & other miscreants who want to do us harm, no small thing, I fear that Order is a precursor to granting The International Criminal Court jurisdiction over Bush Administration members.

From Inwood said...I fear that Order is a precursor to granting The International Criminal Court jurisdiction over Bush Administration members.

Bingo. I agree.

Which once again proves that we're too often a nation of men, not laws. Still, the domestic implications remain open to challenge based on the very concept of "laws," rendering the order illegal - separation of powers notwithstanding.

"I am aghast that your list is necessary here & that, when the 'all people are innocent ‘til proven guilty by our impossible standards' crowd has been thereby shown to have no clothes on, they will dismiss your well-thought points by their all purpose putdown: 'wingnut'.

To his credit, that's not Former Law Student's style.

Even if it were his style, I'm afraid that I wouldn't make a very good "wingnut", because I am a flaming liberal on a lot of issues. (Crime and punishment is one of them, actually.)

I'm going to have to read The Ballad of Reading Gaol when I have a little more time than I do tonight, to better understand what you're saying.

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